Turner v Eastwest Airlines Limited
[2009] NSWDDT 10
•5 May 2009
Dust Diseases Tribunal
of New South Wales
CITATION: Turner v Eastwest Airlines Limited [2009] NSWDDT 10 PARTIES: Joanne Maree Turner
Eastwest Airlines LimitedMATTER NUMBER(S): 428 of 2001 JUDGMENT OF: Kearns J CATCHWORDS: DUST DISEASES TRIBUNAL :- plaintiff an employee of defendant
exposed to smoke from pyrolysed oil in cabin of aircraft
history of oil smells in cabin of aircraft
smoke resulting from fracturing of seal in auxilliary power unit of aircraft
whether proceedings barred by s151D of Workers Compensation Act
whether Tribunal had jurisdiction to hear proceedings
whether plaintiff exposed to dust
whether plaintiff has or had a pathological condition of the lungs
whether plaintiff's condition attributable to dust
whether plaintiff's injury foreseeable
reasonableness of response to foreseeable injury
damages for non-economic loss, economic loss, out-of-pocket expenses, domestic services
LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Workers Compensation Act 1987
Workers' Compensation (Dust Diseases) Act 1942
Workers Compensation (Miscellaneous Amendments) Act 1994CASES CITED: Waverley Council v Ferreira [2005] NSWCA 418
Chapman v Herse (1961) 106 CLR 112, 120-1
Joanne Turner v Ansett Australia Limited [2007] NSWDDT 26
Van Gervan v Fenton (1992) 175 CLR 327TEXTS CITED: The Macquarie Dictionary
The Concise Oxford Dictionary
Mills Workers Compensation New South WalesDATES OF HEARING: 16/03/2009, 17/03/2009, 18/03/2009, 19/03/2009, 25/03/2009, 26/03/2009, 27/03/2009, 30/03/2009, 01/04/2009, 07/04/2009
DATE OF JUDGMENT:
5 May 2009LEGAL REPRESENTATIVES: Mr J McIntyre SC, with Mr D Toomey, instructed by Turner Freeman, appeared for the plaintiff
Mr C S Leahy SC, instructed by Curwoods Lawyers, appeared for the defendant
JUDGMENT:
Abbreviations and descriptions
Abbreviations and descriptions used in these reasons are:
APU Auxiliary Power Unit. This is located in the tail of the BAe and is used to provide compressed air for ventilation and electrical power on the ground and during the take off and landing phases of the flight. On the ground, it is a primary source, particularly for providing compressed, heated air to air-conditioning packs located in the tail of the aircraft. In those air-conditioned packs, the air is cool and mixed with hot air to provide a conditioned environment in the passenger cabin and cockpit of the aircraft. It is not an essential item to the operation of the aircraft. BA British Aerospace BAe BAe146 aircraft Borescope A borescope is an instrument in the form of a long probe with a light, mirror and a magnifying glass at the end of it and is designed to look inside engines for residue of oil and oil leaks. DDT Act Dust Diseases Tribunal Act 1989
DX Defendant’s exhibit. Eastwest Eastwest Airlines Limited, defendant MEL Minimum Equipment List. An MEL is a document produced by the manufacturer of an aircraft. It goes before the regulator in the country of manufacture for approval to fly the aircraft with certain defects (T189.27). The evidence did not disclose it, but presumably approval is also obtained in the country where the aircraft flies. When an aircraft flies in these circumstances, the MEL is described as “applying”. On several instances leading up to 4 March 1992, an MEL was applied to VH-EWS. It permitted VH-EWS to fly without the APU operating. MSDS Material Safety Data Sheet PX Plaintiff’s exhibit. PX 12 Exhibit PX 12: 10 pages of a document described as a Discrepancy History Report recording problems with and remedial action in relation to VH-EWS and more fully described in paragraph 107 hereof. RADS Reactive Airways Dysfunction Syndrome SIL Service Information Leaflet T Transcript URTI Upper Respiratory Tract Infection VH-EWS BAe146 aircraft in which the plaintiff was a passenger on 4 March 1992 WCA Workers Compensation Act 1987
Introduction
1. On 4 March 1992, the plaintiff was employed by the defendant, Eastwest. On that date, she was on a flight between Sydney and Brisbane on a BAe, registered VH-EWS, an aircraft operated by Eastwest. Though she was not on active duty on that flight, there is no issue about the fact that she was in the course of her employment. On descent into Brisbane and for a period of about twenty minutes of the descent, smoke was emitted into the cabin. There was a thick cloud of smoke.
2. The immediate effect of that smoke upon the plaintiff included coughing, a burning throat, sore eyes and headache. So much is not really in dispute. To the extent that these matters are in dispute, I find them as facts.
3. Thereafter, the plaintiff says that she has had persistent cough. The cough has been of a kind she manifested in court during the hearing. I think it is best described as her emitting one or two simple coughs every couple of minutes. Occasionally, it may have been a little more frequent. It was less noticeable on some days than others. She says that she has had periods of paroxysms of coughing which have resulted in her being confined to bed for periods. She has been diagnosed with RADS, though the diagnosis is in dispute. She says also that the RADS was caused by her exposure to the smoke-filled cabin in VH-EWS on 4 March 1992.
4. For her injury, she claims damages in negligence against Eastwest.
5. In some measure, the issues in this case turn on the extent to which I can accept the plaintiff’s evidence and I now proceed to review her evidence and the supporting evidence.
The plaintiff’s evidence and the husband’s evidence
6. I was not impressed with much of the plaintiff’s evidence. She resorted frequently to a lack of recall in answering questions. I do not think the lack of recall is satisfactorily explained by the events on which she was questioned being so long ago. She was prepared to answer questions of a distant time in respect of events that were apparently in her favour. I had the impression that she resorted to lack of recall to avoid answering questions, the answers to which were perceived by her to be against her interest. The lack of recall was frequent, but I thought it was best highlighted by her lack of recall of any coughing before the incident of 4 March 1992. Even when confronted with her history of coughing before 4 March 1992 and medical attention and treatment for it, she pleaded lack of recall. I cannot accept that she has no memory of suffering from coughing for many months each year in her late teenage years. It might be 30 years ago, but health is one thing of which people do tend to have a reasonable recall. One might not recall details such as timing, but one could hardly forget a history of coughing for many months each year in late teenage years, especially when that coughing needed medical attention and treatment in the form of tablets and inhalants.
7. Before 4 March 1992, the plaintiff’s general practitioner was Dr Malouf. His records were in evidence DX 4D. Some of his handwriting is difficult to read, but I think a fair reading of his notes includes the following:
25 May 1979 – cough for five days with a past history of bronchitis at 13 years of age;
16 October 1979 – cough lasting many months each year;
4 November 1985 – has persisting cough. Settled early in the year with Prednisone;
9 December 1985 – still coughing. Settled a little flaring up again although not as bad as before;
27 December 1985 – still coughing. Prednisone dose … Becotide …;
15 April 1986 – …No further chest trouble. No cough for one month. Stopped Becotide…
In some instances, I have expanded on the doctor’s abbreviations. The history would appear to be incomplete in that the entry of 4 November 1985 has the plaintiff’s coughs settling early in the year with Prednisone, but there is no earlier entry where that medication has been prescribed.
I accept the accuracy of these entries.
8. In addition, on 15 June 1993, the plaintiff was able to give Dr Yan a current history of ten weeks of persistent cough with a similar past history in 1986.
9. I do not accept that the plaintiff’s lack of recall of prior cough was genuine. I have no confidence in accepting as genuine her recourse to lack of recall generally.
10. There were other unsatisfactory aspects of the plaintiff’s evidence.
11. Another unsatisfactory aspect of her evidence, I thought, was her evidence as to whether and when she had made the link or connection between her symptoms and the incident of 4 March 1992. In paragraph 35 of PX 2, she unequivocally made the connection between her symptoms and the incident having, in 1999, read Professor Winder’s submission to the Senate inquiry into BAe air quality. When questioned about when she made this connection, she prevaricated and gave evasive evidence, particularly over pages 67 to 69 of the transcript and I sought to clarify the matter at pages 86 and 87.
12. The plaintiff said that she did not see a doctor for 15 months after the incident of 4 March 1992 because she did not think that her condition was related to the incident. There are two unsatisfactory aspects to this answer. The first is that I think it is almost inconceivable that the plaintiff could not have related the two matters. The other and more significant matter is that whether or not the plaintiff had related the two matters ought have nothing to do with the need to consult a doctor. It is not the idea of a connection between symptoms and an event that causes one to go to a doctor, it is the fact of illness.
13. Further, it is difficult to understand that she could be presenting herself as a person in good health up until 4 March 1992 and with continuing symptoms thereafter and not in her own mind, whether it be right or wrong, make a connection between one and the other. Further, in paragraph 20 of PX 2, she deposes to writing a letter to Janine Stewart (manager of flight attendants) a few days after 4 March 1992 outlining her symptoms following the incident and they were symptoms she reckoned were related to the incident T86.47 – 87.01 and 87.10. She then took the position that she was not maintaining that her symptoms were related to the incident because once she left work the symptoms went. This reference to leaving work was a reference to leaving work on maternity leave on 27 March 1992. She was on maternity leave until January 1993. Ultimately, she could not offer any evidence as to whether she had any cough on maternity leave T87.34.
14. Another unsatisfactory aspect of her evidence related to time she took off work between March 1992 and 2002 because of her cough PX2, paragraphs 28 and 32. She applied for sick leave only on days when she was rostered on T21.35. In 2002, her employment ended when Ansett Airlines, for whom she was then working, collapsed. The plaintiff indicated that there would not have been any difficulty about her taking time off work for reasons of sickness and that she did so at times and produced medical certificates as required T46.49.
15. The plaintiff’s sick leave record is contained in PX 42. It reveals as follows:
1993 - one day’s sick leave, not related to the illness the subject of these proceedings;
1994 - 19 days’ sick leave, including two days for URTI;
1995 - 20 days’ sick leave, including one for URTI and sinus, three for virus and one for URTI;
1996 - nil sick leave. The plaintiff was on maternity leave;
1997 - eight days’ sick leave, including one for cough and upper respiratory acute infection and one for URTI;
1998 - nine days’ sick leave, including 4 for laryngitis, two for URTI, vomiting and one for URTI;
1999 - 10 days’ sick leave, including one for URTI;
2000 - nine days’ sick leave, including six for URTI and two for laryngitis;
2001 - six days’ sick leave, including one for bronchitis and two for URTI.
16. I have listed all the sick leave taken by the plaintiff. I have also itemised all days that might possibly be related to cough. There is one day only (10 July 1997) when cough was included as a reason for taking sick leave. I would expect that with many of the other days, where I have referred to illnesses, that cough would have been associated with those illnesses. The plaintiff’s case, however, is that she was required to take time off sick because of the chronic cough she developed as a result of the exposure to the smoke on 4 March 1992. This record does not support that claim. There is no instance of her taking a day’s sick leave by reason of that cough. I do not accept her evidence that she took time off work in that period by reason of chronic cough.
17. Another unsatisfactory aspect of the plaintiff’s evidence was her evidence as to the extent to which she suffered severe coughing episodes. In paragraph 54 of PX 2, she stated that she had not gone for more than three months without a severe coughing fit. On such occasions she coughs constantly for up to six weeks and, for a few days, her cough is so severe she cannot do anything and is forced to lie in bed. Evidence to the same effect is given in paragraphs 73 and 75 of PX 2. This evidence is not corroborated by contemporaneous records or by the husband’s evidence.
18. The matters I have mentioned cause me difficulty in accepting much of the plaintiff’s evidence.
19. This makes it difficult trying to ascertain the extent of the plaintiff’s symptoms following the incident of 4 March 1992. Her evidence is so unreliable that it is necessary to turn to contemporaneous records or other plausible evidence to ascertain her true symptoms over time.
20. Having made the observations I have of the plaintiff’s evidence, I turn to her evidence. To the extent that I set out her evidence without comment, it may be taken that I accept it. Her evidence, in chief, was predominantly contained in her affidavit PX 2.
21. The plaintiff left school at 16 years of age. She then worked with the Rural Bank in the city between 1978 and 1981. Then, she commenced with Eastwest as a flight attendant for several years working on Friendship aircraft. In 1990, she commenced working on BAe. From the time she commenced to work on those aircraft, she noticed an unpleasant and irritating smell and it was present on all BAe she flew on. She spoke to Janine Stewart about the smell. Sometimes, she reported it to the captain at the flight deck.
22. Before 4 March 1992, during or after flying on BAe, the only symptoms she experienced were headaches and a sore throat. On 4 March 1992, in the course of her employment, she was a seated passenger on a flight on a BAe registered VH-EWS from Sydney to Brisbane. She was travelling with two other crew members seated next to her being Peter Smith and Rob Donovich.
23. When the aircraft commenced its descent into Brisbane, Peter started to cough, then Rob did, then the plaintiff did. She looked around and saw a cloud of white grey smoke entering the cabin through the wall vents for the air conditioning. The cabin became filled with thick, dense smoke and the plaintiff could not see more than several feet in front of her. She was unable to stop coughing. Her throat was burning. Her eyes became sore and started to water and she developed a headache. When she got off the plane, she went to the bathroom and washed her face and eyes. Other passengers from the plane were doing likewise. She gargled some water, washed her face and felt slightly better.
24. The plaintiff worked over the next three days.
25. She then says that her headache continued for days as did the burning sensation in her eyes and her sore throat and her cough did not go away. She also says that she developed welts and blisters on her skin. I accept her evidence about symptoms in relation to the skin, but I do not accept that she had continuing headaches for days or continuing burning sensation in her eyes or sore throat. Her husband did not notice anything unusual about her when she returned home a couple of days later T95.29.
26. On 4 March 1992, the plaintiff was 25 weeks into her first pregnancy. She says she was concerned whether her unborn child would have been affected by the incident of 4 March 1992. She kept flying on the BAe until she took maternity leave on 27 March 1992. During that time, she was doing her full normal shifts and her full normal duties. She says that she continued to cough. I do accept that she did cough, but that it would best be described as occurring every couple of minutes without being intrusive or distracting.
27. At this point, I pause to note that Mr Leahy SC, who appeared for the defendant, submitted that I should not accept the plaintiff’s evidence as to this coughing and other matters as her evidence was unreliable and not supported by evidence from fellow workers, friends or relatives, except the husband. I have indicated my view as to the reliability of the plaintiff’s evidence. I shall deal with the husband’s evidence later, but essentially, I accept it. That being so, to the extent that his evidence corroborates the plaintiff’s evidence, the absence of evidence from fellow workers, friends or other relatives is not necessary. There are areas, however, where the husband’s evidence does not corroborate the plaintiff’s evidence and in these areas I do not accept the plaintiff’s evidence.
28. During her maternity leave, her daughter was born on 21 June 1992. The plaintiff returned to work from maternity leave on 29 January 1993. During maternity leave, she continued to suffer from “irritation problems including a cough” PX2, para 25.
29. When she returned to work on 29 January 1993, the plaintiff resumed flying. Until September 1993, she flew mostly on BAe and occasionally on 727 aircraft. After September 1993, the plaintiff flew on the BAe aircraft “on an intermittent basis” PX 2, paragraph 27.
30. The plaintiff claimed she had time off work as a result of her cough which had become worse and more pronounced when she resumed flying on the BAe. I do not accept this evidence of the plaintiff for reasons given in paragraphs 14 to 16.
31. During 1993, she saw her general practitioner, Dr McConnell. Dr McConnell referred her to Dr Yan, a respiratory physician.
32. Dr Yan told the plaintiff that she had become highly allergic and diagnosed allergic rhinitis with a postnasal drip. Dr Yan prescribed nasal steroid sprays which did not help and the cough persisted. The plaintiff continued to see her general practitioner about her cough and again in 1994 Dr McConnell referred her to Dr Yan.
33. In late 1995 the plaintiff became pregnant and ceased flying in or around December 1995. She left work soon after that time. Her baby was born on 17 June 1996. She resumed work on a full time basis in March 1997, working on domestic and international flights. The plaintiff flew on BAe intermittently until 2001. Most of her work was on day time, domestic, “short hops” routes carried on BAe.
34. Again, the plaintiff claims to have continued to have time off work because of her “chronic cough” PX 2, paragraph 32. I do not accept that evidence. Her cough became “much more severe” if she had a cold and at times the cough interrupted her talking. I do accept that her cough would be worse when she suffered colds, flus, URTIs and the like and that the cough could interrupt her talking, although that was not evident in her giving evidence.
35. In July 1998, the plaintiff saw Dr Harrison, an ear, nose and throat specialist, about her cough. Dr Harrison told the plaintiff that she was not suffering from allergic rhinitis with a postnasal drip, but rather a deviated septum. He prescribed Aqueous Aldeon and the plaintiff returned to him on 3 August 1998 and told him that that medication did not work. Dr Harrison investigated whether the plaintiff had reflux and prescribed Losec which had no effect on the plaintiff’s cough. Dr Harrison was unable to find a reason for the plaintiff’s cough.
36. In late 1999, the plaintiff started seeing another general practitioner, Dr Mahmood. She complained about her cough. Dr Mahmood prescribed Friar’s Balsam as an inhalant which had no effect.
37. In 1999, the plaintiff read a submission made by Professor Winder to the Senate inquiry into BAe air quality. The plaintiff says she then connected her cough and respiratory problems with the incident of 4 March 1992 PX 2, paragraph 35. For reasons given earlier, I find her evidence about when she made the connection to be unreliable.
38. In late 1999, the plaintiff was referred to Dr Phoon. She told Dr Phoon of the incident and the problems she was experiencing.
39. In February 2001, Dr Mahmood referred the plaintiff to Professor Glanville. Professor Glanville diagnosed RADS. The plaintiff saw Professor Glanville throughout 2001 and 2002. He prescribed “puffer” medication.
40. The plaintiff says she took time off work to ascertain whether the cough would recede if she was away from her workplace. She took Professor Glanville’s medication as prescribed. She felt good some weeks. The cough would return with no obvious precipitating cause. She described the cough as being “much the same as when I was at work” PX 2, paragraph 42. As the cough did not improve whilst on leave, the plaintiff returned to normal duties at work and the cough continued. She told Professor Glanville that the cough did not go away.
41. Dr Mahmood referred the plaintiff to Dr Burdon, a respiratory physician, on 14 August 2002. The plaintiff had learned that Dr Burdon had examined some Ansett crew in relation to respiratory problems and she requested the referral. Dr Burdon did not prescribe any new treatment for the plaintiff.
42. On 13 May 2004, the plaintiff underwent a gastroscopy and colonoscopy performed by Dr Hall.
43. In March 2002, the plaintiff was feeling well and not coughing. She stopped taking her medication. By June of that year, she “again had a chronic cough such that I could not talk because of my cough”. She resumed taking medication. After a few months the cough subsided. To the extent that the plaintiff seeks to convey that she could not talk over a period of a few months because of her cough, I reject that. I accept that at times she has worsened episodes that interfere with her ability to talk. She again stopped taking the medication. The plaintiff developed a severe cough and required oral Prednisone. She describes that this pattern has continued. The plaintiff says she knows she has to take puffer medication as prescribed by Professor Glanville “for the rest of my life” PX 2, paragraph 52.
44. The plaintiff continues to experience “acute episodes which cause coughing fits” PX 2, paragraph 53. She experiences respiratory infections and is affected if she is run down and tired. Exposure to smoke or fumes or cold air conditioning causes an instant reaction.
45. Since March 1992, the plaintiff has experienced coughing fits about four times a year. She has not gone more than three months without a severe coughing fit PX 2, paragraphs 54 and 73. When this happens, she coughs constantly for a period of up to six weeks. During such episodes, she coughs severely for a few days and she “cannot do anything” PX 2, paragraph 54 and she lies in bed, trying to be still and quieten down. I do not accept the plaintiff’s evidence that she cannot do anything or that she lies in bed because of the cough. Nor do I accept the coughing fits last for up to six weeks.
46. The plaintiff is unable to talk without coughing. She has difficulty sleeping because of the cough. She feels as though she is gagging or choking and the cough burns her throat. The coughing causes a tight feeling in her chest and she experiences pain in her chest muscles. She feels fatigued. Within a few days, she loses bladder control. The plaintiff cannot predict when a coughing fit will come on PX 2, paragraph 73.
47. The plaintiff takes Codeine and Prednilsone. After a few days the medications open her airways and relieve “the feeling of someone jumping” on her chest and she brings up small amounts of mucous PX 2, paragraph 54.
48. On a few occasions when the plaintiff has experienced severe coughing fits, she has seen a doctor at her local medical centre. No evidence was tendered from any such doctor. I do not accept that the coughing fits have the consequences claimed by the plaintiff in paragraph 44 or that she has the symptoms to the extent alleged in paragraph 45.
49. In 2008, when the plaintiff had a severe cough, a doctor increased her dose of Symbicort to 400mg, up to 16 times a day. She says she also sees doctors in Sydney three or four times a year for prescriptions for her puffer medication. No evidence was tendered from any such doctor. Dr Papakostas was one doctor she saw from 2002 to 2004. She could not recall how often she saw him. It may have been a few times over two years T58.19.
50. The plaintiff says that up until the incident of 4 March 1992, she did not have any health problems and she never smoked. Prior to March 1992, the plaintiff had led an active life, playing competitive and social sport. She continues to play sport, but not at the same level. Swimming in chlorinated water and running causes her to cough.
51. The plaintiff worked for Ansett up to 4 March 2002. She worked on a rotating basis. During that time, the plaintiff applied for a position as a flight service director with Impulse Airlines. The application was unsuccessful because the airline “went under” PX 2, paragraph 60. Later, the plaintiff completed the first stage of a recruitment process with Virgin Blue, but did not continue because she “was over the age of 26 years” PX 2, paragraph 61.
52. In November 2001, the plaintiff worked for an orthodontist for a week. She left because of the unsuitability of the hours she was required to work and because she “coughed continually” and was “uncomfortable coughing in the vicinity of patients” PX 2, paragraph 62. I do not accept that she was unable to do the work because of the cough.
53. Due to the shortage of airline jobs, the plaintiff decided to join the police force. She completed the initial stages of recruitment and completed a Transition to Policing Studies course via Charles Sturt University. The plaintiff undertook medical tests as required by the police force. Those tests included hearing and eyesight tests. One of them was on 29 April 2002. The other presumably was thereabouts. She also needed a medical certificate from her general practitioner. For this she says she saw Dr Papakostas. She cannot recall what happened to the form of medical certificate that he was meant to complete T24.03. She says that Dr Papakostas told her that she was not fit for this job. There is no evidence from Dr Papakostas to that effect and I do not accept that that was his opinion. There is contrary evidence from Professor Glanville PX 6B and the plaintiff acknowledged that Dr Glanville supported her with her intention to pursue the police work. In PX 6B, Professor Glanville wrote “TO WHOM IT MAY CONCERN”. The context of the document suggests that it was a report in support of the plaintiff’s application to undertake the police work. I do not accept the plaintiff’s evidence that Dr Papakostas told her she was unfit to undertake the work and for that reason she did not pursue the application. There was no explanation offered for the absence of Dr Papakostas and, in light of the suggestions put to the plaintiff in cross-examination on this matter and also the opinion of Professor Glanville at the time that she was fit without restrictions, I can more comfortably come to the view that the evidence of Dr Papakostas would not have assisted the plaintiff on this point. Further, the plaintiff was proceeding with the application no doubt thinking she could do the work. If she had have been accepted into the police force, she says she would have tried to work doing sky marshalling PX 2, paragraph 66 or general duties T90.37. She would have worked to the compulsory retirement age.
54. For a period of nine weeks from October 2002 to January 2003, the plaintiff worked as casual ground crew on an “Aero care” F28 jet. She worked eight hours a week in two four hour shifts. She was in an aircraft cabin on the tarmac when air was coming out of the vents and she smelt oil. She says this concerned her.
55. The plaintiff and her family moved to the North Coast late in 2002 and early 2003. Her husband had applied for a job as the headmaster of a new school that was just established there. The plaintiff’s condition and the desire to live in a clean air environment in the country were factors taken into consideration when her husband applied for the job. A significant reason for the move was the husband’s opportunity to take on the position of headmaster at a school, a role he had not held before. A further incentive for him to take that on was that the school was a new school that was being established.
56. The plaintiff says that if she did not have her coughing condition she would have continued to work in the airline industry as she had already done for 20 years. She did not plan for retirement at a particular age and was aware of the retirement age of 55+ years. She would have looked for work with domestic and international airlines and was prepared to be away overnight. If she was unable to find work in the airline industry, she would have looked for work in the hospitality industry. She had worked briefly in a bar/restaurant in 1989. Since living on the North Coast, the plaintiff has applied for two part time customer service jobs. Her applications were unsuccessful.
57. The plaintiff believes her cough stops her from working because she could not cope if she had an acute episode of coughing. When she experiences an acute episode, the plaintiff says she has trouble talking for weeks. She finds the coughing exhausting and says she spends a few days in bed. I do not accept this evidence.
58. The plaintiff says that before her cough, she had no plans to give up work. She has worked since she was 14 years old. She does not like not working. She wanted to be a working mother as a role model for her children.
59. The plaintiff says that when she experiences acute episodes of coughing, she needs care and assistance looking after herself and the household. Whenever she experiences coughing fits, she takes to her bed for approximately 3 days. I do not accept that evidence. During these times, her husband takes over the running of the house and the plaintiff is unable to carry out any work around the home. I do not accept that the plaintiff is unable to carry out any work around the home at these times and I do not accept that the husband takes over the running of the house because the plaintiff is unable to do so because of the cough. Further, much of what the husband does is unrelated to the cough. It is said that the plaintiff’s husband spends about six hours a day doing the “cooking, cleaning, washing and everything else to keep the household going” PX 2, paragraph 75. After the period of being bed ridden and within the six week period of the coughing fits, the plaintiff’s husband provides care and assistance to her and the household for approximately four hours a week. I do not accept that such care and assistance to the extent claimed is provided by reason of the plaintiff’s cough.
60. As the plaintiff cannot tolerate chemicals and fumes, her husband attends to chores such as cleaning the shower recess and oven using chemical sprays. He spends about one hour per week doing this work. The husband’s evidence on this was not so clear. Mr Leahy SC submitted that the husband’s evidence contradicted that of the plaintiff on this point. He said he had been doing this work since 1993 “most of the time” T98.48. At other times he said the plaintiff does it T99.49, but to a different level. He has never noticed her start to cough when she has used chemical cleaning agents T99.24. The husband’s evidence is not as clear as it might have been, but I do not think it contradicts the plaintiff’s evidence. I think in substance it supports the plaintiff’s evidence.
61. The plaintiff is embarrassed by her cough and the attention it brings from other people who express concern. She says it has restricted her social and recreational activities. She avoids going to the theatre or concerts as she is unable to suppress the coughing for the duration of a performance. She was recently unable to tolerate burning incense at a church function. The plaintiff was unable to take up a spot on a radio station because of her coughing.
62. The plaintiff used to avoid clubs or hotels because of the smoke. Since the anti-smoking laws, she can now re-enter these environments T22.14. She is also affected by bushfire smoke or smoke from log fires. The plaintiff starts to panic if she feels she has been exposed to chemicals. She cannot walk past stored paint.
63. The plaintiff plans everything she does and carries her puffers on her at all times.
64. The plaintiff is angry at her condition.
65. The plaintiff’s first recorded complaint of cough was to Dr Yan on 15 June 1993 when she gave a history of cough persisting for 10 weeks. There are then gaps in recorded history until she saw Dr Phoon in 1999. As to the plaintiff’s real history of coughing, I obtain most assistance from her husband’s evidence.
66. It was put to the husband that he was prepared to exaggerate his evidence for the purpose of assisting the plaintiff’s case. I do not accept that challenge to his evidence. I thought he gave his evidence honestly and to the best of his ability. I am mindful that in some instances, he was giving evidence of events long ago and his memory may not be clear or correct on some matters. He acknowledged as much.
67. The husband gave evidence that the plaintiff did cough during her maternity leave from March 1992 to January 1993, both before and after the birth of the first child and also when she returned to work from maternity leave T96. The plaintiff’s evidence on this was unreliable. It was confusing, ultimately resting with her not being able to recall if she coughed during maternity leave T87.34. Her husband thought that her cough during this period was much the same as it is now T100.18. I accept that the plaintiff has had what might be called an underlying cough from about the time of the incident to the present, although there may have been some short periods when she was cough free. To the extent that histories to doctors suggest otherwise, I do not accept those histories. The cough I accept that she has had is an underlying cough which is emitted every couple of minutes. I do not find it to be a loud or intrusive or distracting cough. It was certainly not demonstrated to be so during the running of this case. It might well be different if she were in a cinema or at a symphony concert where it would no doubt be most distracting and, undoubtedly, embarrassing for her. There is also a more aggressive cough which the plaintiff has occasionally and I accept that this is so. However, I do not accept it is as the plaintiff describes and I accept her husband’s evidence on this point.
68. The husband’s evidence was that the coughing now is as it has been since 1992 T100.18. At times, there were episodes of coughing he described as more aggressive. On those occasions, the plaintiff would appear to lose her breath and these events could last a couple of days more or less T96.29-34, up to one week T99.30, and occurred about six times a year T96.36. Sometimes, she may have been in bed if she was tired T96.46. Mr McIntyre SC, who appeared with Mr Toomey for the plaintiff, submitted that this evidence corroborated the plaintiff’s evidence of the plaintiff taking to her bed when she had the more severe episodes of coughing. I do not accept that. This evidence needs to be read in conjunction with the cross-examination, especially at T102-3. There, the husband could not recall occasions in given years of the plaintiff taking to her bed. When the general question was put to him, he refuted the suggestion of having no memory of this between 1992 and today and was able to recall two or three specific instances. They were the only instances he could recall and they were distant in time.
69. In my view, the plaintiff’s evidence about the worsened episodes lasting about six weeks and taking to her bed is not corroborated and I do not accept it.
70. The husband stated the plaintiff’s cough continued until she moved to the North Coast in early 2003. Following that, the persistent cough continued, but the more aggressive episodes diminished. To what extent they diminished is not clear, but it seems that relief must have been temporary as the husband gave evidence of the plaintiff still suffering the more severe episodes.
71. The plaintiff’s husband has known her closely since 1977. I accept his evidence that before March 1992 she was vibrant, cheerful, friendly, active and enjoyed life and that now her vibrancy, vitality and energy levels are less. From 1977 to 1992, he had not noticed anything adverse about the plaintiff’s health. In view of the plaintiff’s history of coughing before 4 March 1992, I think this is an instance where his memory has probably let him down. He did acknowledge that that could be so and that the plaintiff could have visited doctors for a cough before 1992.
72. I find that following the incident of 4 March 1992, the plaintiff suffered the acute symptoms described in paragraph 2 hereof. Following that incident, she developed an ongoing cough. The cough has been of two kinds. There have been what I might call an underlying cough and a more aggressive one. The underlying cough might be described as a nuisance or an irritant. I am unable to find with any specificity what its frequency was when it commenced. I can find only that it was less frequent than it is at present. This difference in frequency, however, is not material to my deliberations. The present frequency is once every couple of minutes. It is not a loud cough or intrusive or distracting. The more aggressive cough resulted in the plaintiff’s appearing to lose her breath. This occurred following the incident of 4 March 1992 and lasted until she moved to the North Coast in early 2003. These episodes occurred about six times a year and lasted about two to three days, although they could be shorter or longer. For a period of time I cannot determine, there was some improvement in the plaintiff’s condition so far as the more aggressive cough was concerned after she moved to the North Coast. I do not accept that the more aggressive episodes have lasted six weeks or have required the plaintiff to take to her bed.
Jurisdiction
73. The first question that arises in this case is whether this Tribunal has jurisdiction to hear these proceedings.
74. Section 10(1) of the DDT Act provides:
“The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.”
75. Section 11(1) of the DDT Act provides:
“If:
(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and
(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and
(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,
proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.”
76. Section 12 is not relevant.
77. The issue here is whether s11(1)(a) is satisfied, that is, whether the plaintiff is suffering or has suffered from a dust-related condition. The answer to that issue lies in s3 which defines “dust-related condition” as:
“(a) a disease specified in Schedule l, or
(b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust”.
The plaintiff does not fall within (a) so the question is whether she falls within (b).
78. Three questions arise here.
(1) Does the plaintiff have or has she had a pathological condition of the lungs? For reasons which I explain later, I consider that the answer to this question is yes.
(2) Was she exposed to dust? This is the main jurisdictional question on which the debate was centred and I shall return to that.
(3) If the answer to the above two questions is ‘yes’, is the plaintiff’s condition attributable to the dust to which she was exposed? That is a causation question and I deal with it in considering the plaintiff’s condition and its causation. For reasons there expressed, my view is that her condition was caused by exposure to the dust to which she was exposed.
79. Returning to (2), was the plaintiff exposed to dust? The Macquarie Dictionary has a number of definitions of dust. The first three have relevance. They are as follows:
“1. earth or other matter in fine, dry particles.
2. any finely powdered substance, as sawdust.
3. a cloud of finely powdered earth or other matter in the air.”
The first definition of dust in The Concise Oxford Dictionary is as follows:
“1 a finely powdered earth, dirt, etc., lying on the ground or on surfaces, and blown about by the wind. b fine powder of any material (pollen dust; gold-dust). c a cloud of dust.”
80. The evidence as to what substance the plaintiff was exposed to comes essentially from the observations of the plaintiff and the evidence of Dr Crank and Dr Markovic, experts qualified on behalf of the plaintiff and the defendant respectively.
81. So far as the plaintiff’s evidence is concerned, I accept her observations as to what she saw in the cabin on 4 March 1992. I find that on 4 March 1992, there was emitted into the cabin of VH-EWS a cloud of white grey smoke. It came in through the wall vents. The cabin became filled with thick, dense smoke reducing visibility for a time to not more than four feet. The smoke continued to pour through the vents for a period of about 20 minutes as the plane descended into Brisbane. It was still present in the aircraft at the time the plaintiff left the aircraft. The smoke was emitted into the cabin as a result of the oil in the APU undergoing a process of pyrolysis.
82. Dr Crank and Dr Markovic provided reports PX 4, DX 5A, DX 5B and gave evidence. There was a point of dispute in their evidence that I could not understand. That point was whether pyrolysis could occur below the boiling point of oil. I would have thought that there could be no disagreement about that point. The result was that both Dr Crank and Dr Markovic returned to give evidence in a joint session. The upshot of that was that there was much agreement. They agreed that pyrolysis is the thermal decomposition of organic material in oil without combustion. They agreed it occurs before the boiling point or the flash point of oil. The flashpoint of Mobil Jet Oil II needs to be taken from the MSDS. There are two: 246C and 270C. Pyrolysis occurs at close to 230C. Breakdown of oil that occurs before smoke is emitted is not likely to be hazardous. After smoke occurs, the materials are likely to be hazardous to eyes, mucous membranes and lungs. If one could look through a microscope or other aid, what one would see in the smoke is small particles, ultra-small particles of carbon.
83. In view of the consensus in the evidence of Dr Crank and Dr Markovic, it is not necessary to cover much of the evidence they gave in their reports or orally. Dr Crank stated that the small particles remain suspended in the air for a time and eventually settle on a surface and look like a black, sooty, dark mess T120.30. The suspended particles may have moisture in them. The smoke in the cabin of the aircraft on 4 March 1992 would have contained pyrolysis products and pyrolysis products only.
84. Mr Leahy SC submitted that smoke is not dust within the meaning of the DDT Act. The distinction is that dust is the result of something being broken down either deliberately or inadvertently. Smoke is not a product of something being broken down. It is a product of combustion. In my view, whilst dust may be produced by something being broken down, it is not the only way in which dust may be brought about. The dictionary definitions would not compel that result and nor would the use of the word in the context of the Act. Schedule 1 of the DDT Act lists a number of diseases. Some of them may be caused by a product that is not broken down, for example, Farmer’s Lung and bagassosis. They are diseases that the Act contemplates being caused by an agent, not necessarily broken down in the way submitted by Mr Leahy SC. That agent is recognised by the Act as a dust. That being so, an agent for the causation of a disease may be a dust within the meaning of the Act contrary to this submission of Mr Leahy SC.
85. Mr Leahy SC also submits that under s35 no diseases have been added to Schedule 1. That is a neutral point. He also submits that s25(3) supports a narrow construction of dust. I do not think that is so. I do not think s25(3) offers assistance as to what the meaning of dust is. It is a section that operates where proceedings have, in fact, been concerned with dust exposure and dust diseases.
86. Mr Leahy SC’s more telling submission, I think, is that if the Act were meant to cover smoke, it would have been a simple thing to include it and he gets support for that submission from the fact that none of the scheduled diseases is a disease caused by smoke. This argument has some force especially when it is well understood and must have been known to Parliament when the Act was passed that there are many smoke-caused diseases, lung cancer from smoking perhaps being the most obvious. I do not think this submission should be upheld. In my view, the wording of the relevant sections of the Act encompasses smoke as a dust. In s3, a dust-related condition is relevantly any pathological condition of the lungs attributable to dust. In ordinary common parlance, dust encompasses smoke or ash. Dust may need to be distinguished from gas, fume or vapour. The distinction would be that dust comprises particulate matter. Smoke comprises particulate matter and, accordingly, is more comfortably described as dust rather than gas, fume or vapour. I do not consider that there is a distinction between smoke and dust such that smoke cannot be dust. When the particulate matter settled, it would, to most people, be recognised as dust. If, through the microscope or other aid, one could see the particulate matter without the smoky haze, most people would recognise the particulate matter as dust. The dictionary definitions would encompass smoke as dust.
87. There was some evidence and there were some submissions about whether a dust needed to be dry to fall within the DDT Act. In my view, this is not essential. Dryness is not a component of some of the dictionary definitions of dust I have referred to earlier.
88. Further, reference to some of the dust diseases in Schedule 1 of the DDT Act and to some of the dusts that may cause those diseases would suggest that dust does not need to be dry. Bagassosis and Farmer’s Lung are diseases that may be caused by products that are not dry. Both are caused by spores from fungi. Furthermore, Mills Workers Compensation New South Wales practice 80202.2 states that wood dust can cause occupational asthma, although the case cited Stelzer v W D & H O Wills (Australia) Limited, Dust Diseases Tribunal, 24 February 1995 did not give rise to the specific question. Wood dust is not necessarily dry. The practice also states 80202.3 that pigeon droppings may properly be described as dust although no reference is cited for that. These matters suggest that dryness is not an essential component of dust to come within the DDT Act.
89. I must, with reluctance, come to a different view to that expressed by Maguire J in Stelzer where he held that to come within the DDT Act dust must be dry. He thought that the Macquarie Dictionary definitions suggested that dryness was a necessary element for dust. I do not think that is so, for example, “sawdust”, referred to in the definitions, need not be dry. Further, his Honour does not appear to have been taken to the scheduled diseases where it is apparent that some diseases may be caused by an agent that is not dry.
90. I do not find the evidence given as to the meaning of the term “dust” to be helpful. Indeed, I do not think it is relevant. The term is not a scientific or technical term. It is an ordinary, common English word and it takes its meaning from the text and context in which it appears in the DDT Act. Evidence from experts that terms such as dust, fume, vapour, mist, gas and smoke have certain meanings is not relevant and I do not consider such evidence in coming to a view about what “dust” means in the DDT Act. What is useful, however, is that the experts describe material that is suspended in the air as aerosol. It may be solid or liquid. It is clear that the smoke in the cabin of the aircraft on 4 March 1992 was an aerosol that contained solid matter.
91. For reasons I have expressed, I consider the plaintiff was exposed to dust within the meaning of the DDT Act. The result is she has a dust-related condition, such that jurisdiction is founded in the Tribunal to hear and determine these proceedings.
Limitation
92. In the course of evidence, an issue arose as to whether the plaintiff’s claim was barred by reason of s151D of the WCA.
93. Section 151D(2) provides:
“A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”
94. I do not think this provision applies and that is because of s12A of the DDT Act. Section 12A(2) provides:
“Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.”
95. I have determined that the plaintiff suffers a dust-related condition within the meaning of the DDT Act and, accordingly, her proceedings are “proceedings before the Tribunal in relation to [a] dust-related” condition. As the plaintiff’s proceedings are in relation to a dust-related condition, s12A(2) applies. In my view, s151D of the WCA is encapsulated by the phrase “any other statute of limitations” and, accordingly, it does not bar the plaintiff’s proceedings.
Breach of duty of care
What happened?
96. On 4 March 1992, approximately 1.75 litres T294.16 of pyrolysed oil entered the cabin of VH-EWS. The oil escaped from the APU and was heated causing it to undergo pyrolysis. It came through the bleed lines into the cabin. There is no dispute that the oil escaped because of a cracked compressor carbon seal PX 13.
Was it foreseeable?
97. The plaintiff’s case is that the crack in the compressor seal was foreseeable with the result that it was foreseeable that oil would leak, pyrolyse and the smoke from that process enter the cabin of the aircraft. The defendant’s case is that the crack in the seal was totally unpredictable, that it happened suddenly when forces in a hostile environment were applied to the APU on descent of the flight into Brisbane. The opposing positions of the parties do not pose the right question Waverley Council v Ferreira [2005] NSWCA 418 [42], [43], Chapman v Herse (1961) 106 CLR 112, 120-1. The question is whether it was foreseeable that smoke from leaking oil would enter the cabin of the aircraft. This was foreseeable. In any event, I think the crack in the seal or failure of the seal was foreseeable.
98. In considering foreseeability, the following matters are of relevance:
(a) leakage of oil from the APU;
(b) the existence of cabin smells;
(c) the defendant’s attempts to find the source of the cabin smells;
(d) advice received by the defendant as to the source of the cabin smells.
Oil leakage from the APU
99. Mr Cain, who is a licensed aircraft engineer and who worked for Ansett Airlines from 1964 to 2001 and was qualified by the defendant to give evidence, said some oil leakage from the APU is permissible. Laboratory tests allow the loss of three millilitres per hour of operation of the APU. Mr Marosszéky, who had experience in aircraft maintenance engineering and other qualifications and was qualified by the plaintiff to give evidence, was of a contrary view PX 11A, p3 and T206.31. I prefer Mr Marosszéky’s view. Mr Cain’s opinion became an understanding T296.36 and was based on some manual which commented on the laboratory tests T303.9. The manual was not put into evidence. Further, Mr Marosszéky’s view gains support from PX 39. PX 39 includes:
“… WE HAVE CONCENTRATED THE MAJORITY OF OUR EFFORTS ON PREVENTING REINGESTION OF CONTAMINATED AIR INTO THE APU AND OF INSURING [sic] THAT THE APU COMPRESSOR SEAL PREVENTS OIL LEAKAGE INTO THE BLEED AIR SYSTEM”;
“GARRETT AND BRITISH AEROSPACE DISAGREE WITH ANSETT’S SUGGESTIONS THAT A CARBON SEAL WILL ALWAYS LEAK A SMALL AMOUNT”.
100. It was submitted that I should prefer Mr Cain’s evidence to that of Mr Marosszéky. One reason was that Mr Marosszéky was partial, especially in the way he cast doubt on PX 12. One aspect in which he cast doubt on the document was in respect of the loss of oil and he suggested that the record probably did not contain a complete or accurate history of oil loss. His experience may well have given him reason to doubt the material in this way. In doing so, however, his evidence was neither necessary nor helpful. I do not consider that in doing this Mr Marosszéky was partial. In fact, his doubts as to PX 12 being accurate were later confirmed by Mr Cain who stated that PX 12 would not necessarily record all quantities of oil added T302.4 and .19. I think Mr Marosszéky was probably genuinely bringing his experience to the issue. I do not accept this, or other ways in which he cast doubt on PX 12, as a basis for preferring Mr Cain’s evidence over that of Mr Marosszéky. I would add that Mr Marosszéky was not alone in casting doubt on the accuracy of PX 12. Mr Cain also cast doubt on it and, in a way, I found not to be helpful and I deal with that in paragraph 132.
101. Against the background of Mr Marosszéky’s view that oil leakage is not permissible lies an amount of evidence that, leading up to 4 March 1992, oil was leaking from the APU. This evidence is in PX 12 and is as follows:
8 January 1992, 100ml of oil added;
18 January 1992, low oil;
13 February 1992, APU oil level adjusted;
16 February 1992, 100ml oil added.
Existence of cabin smells
102. The BAe had problems with cabin smells from the time that they were acquired by the defendant in 1990. In fact, it was a worldwide problem with the BAe and this was well known to the defendant.
103. Cabin smell remained an ongoing problem up to 4 March 1992. This was acknowledged by the defendant. There were several references to smell problems in PX 12. PX 26 also contains about seven references to smell complaints between January 1992 and 1 March 1992.
104. In relation to cabin smells, there were entries of some note in PX 12:
(a) on 24 February 1992, is an entry “APU AIR NOT FIT FOR HUMAN CONSUMPTION”;
(b) on 2 March 1992, is an entry of oily vapour in the cabin with “BURNING SMELL”;
(c) on 3 March 1992 is the following entry:
“APU & SURROUNDING AREA CLEANED OIL LEVELS CHECKED OK NO EVIDENCE OF OIL CONTAMINATION IN ARI [sic] DUCT AIR CON PACKS RUN ON FULL HOT FOR 15 MINS. OIL SMELL STILL VERY STRONG
MEL 49-50-1 APPLIED”
105. There are a couple of things to note about this last entry. The first thing to note is that despite all investigations, the oil smell is described as still very strong. The next thing to note is that even though the air conditioning packs were run on full hot for 15 minutes, the oil smell was still very strong. The idea of running the air conditioning packs on full hot for 15 minutes was to clear them of their smell. That it did not leaves the APU as a possible source of the smell and this was the day before the failure of the compressor seal.
Defendant’s attempts to find the source of the cabin smells
106. There was what Dr Lewis, a medical practitioner formerly employed by Ansett, described as a smell problem and a seal problem. The seal problem from the outset was a problem with seals of the engines and the APU. The predominant problem from the beginning was with the engine seals. Over a period of time, the defendant got on top of the problem with the engine seals T354.39 and efforts were then focussed on the APU as the source of the smells in the cabin. That is consistent with Dr Lewis’s evidence that the defendant had got on top of the engine seal problem and “then it became apparent that we had the same problem in the little auxiliary power unit” T354.40. Dr Lewis could not say when it was that the defendant got on top of the engine seal problem. PX 12 suggests that this was before 4 March 1992.
107. This now requires an explanation of the significance of PX 12. This document is part of a much larger document consisting of some 200 to 300 pages. The 200 to 300 pages are part of a much larger log. The 200 to 300 pages contain a full history of anything to do with smell in relation to the aircraft T323.47. Those pages are part of a recording system that regulations required the defendant to maintain. The regulations required the defendant to maintain a log book. This was maintained through a computer system that recorded all data relevant to the aircraft. That computer log then became a real-time indicator of how the aircraft was performing hour-by-hour during its operation T286. From this log record, for this case, the database had a query put into it whereby the reference to smell in relation to VH-EWS produced PX 12 and the other 200 to 300 pages, being a full history of smells associated with engines or the APU. These pages were produced on 4 May 1998 when Ansett was still operating. From PX 12, it can be discerned that, leading up to 4 March 1992, the efforts and investigations were concentrated on the APU as the source of the smells.
108. PX 12 shows multiple investigations by the defendant with a view to locating the cause of the problem which was the oily smell in the cabin of the aircraft. These investigations were looking for possible oil leaks in the APU T321.44. Mr Cain suggested that PX 12 would not contain records of the investigations targeted at engines as they would be in different documents referred to as ATA 73 and 75 T321.46. The difficulty with this is twofold. The first is that PX 12 does contain some references to engines as the source of the smell. The second is in the way Mr Cain explained PX 12 it should contain records of all investigations relating to engines and the source of the smells T323.47. Further, the defendant did not tender any material from ATA 73 or 75 or seek any adjournment for the purpose of doing so or offer any explanation for the absence of such material.
109. It is apparent that the defendant knew of the oily smell in the cabin well before 4 March 1992 and it attempted to locate the source of the smell. The defendant was alert to the possibility, maybe even probability, that the smell was emanating as a result of an oil leak in the APU. It undertook investigations to try to source an oil leak there.
Advice received by the defendant as to the source of the cabin smells
110. The APU generally, though not necessarily exclusively, in relation to BAes was also implicated in other materials available to the defendant before 4 March 1992 as a source for smells in the cabin of the aircraft:
(a) engine or APU oil compressor seal failure can cause oil contamination of air PX 27;
(b) ongoing investigations suggest failure of the compressor oil seal PX 28;
(c) oil smells alone could be due to degradation of the compressor seal PX 28;
(d) if, after checks, smell persists, the compressor seal must be suspected PX 28;
(e) cause of cabin smell can be oil from APU compressor seal failure PX 14.
111. This material is consistent with an opinion expressed by Mr Marosszéky as follows:
“This engine also has carbon seal installations with the same issues as the engine and is a known source of air contamination through the front compressor seal, cooling fan seal and APU plenum to gearbox seal.” PX 11A, paragraph 12
Analysis
112. Before 4 March 1992, the defendant was concentrating its efforts on the APU as the source of the cabin smells.
113. Leading up to 4 March 1992, there were two possible sources for the smell in the cabin of the aircraft. They were the engines or the APU. I think the engines can be excluded as a source in the weeks leading up to 4 March 1992. The first thing to note here is that Dr Lewis said that the biggest problem in the beginning was engine seals, but “we got on top of those” T354.39. The next thing to note is that PX 12 reveals that leading up to 4 March 1992, with an exception in January 1992, all efforts and inquiries were directed at the APU as the source of the smells.
114. Mr Cain’s view was that the smell was not coming from the APU. His view was that it was probably the engines that were the source of the smells. I do not accept that view. Dr Lewis’s evidence, married with PX 12, is against it. If there was anything in the other 200 to 300 pages to show that the defendant was investigating the engines as a possible source of leak, they could have been tendered. If there was anything in ATA 73 or 75, the defendant could have tendered them or offered an explanation for their absence.
115. Mr Marosszéky was also of the view that the APU was the probable source of the cabin smells. He thought that the most obvious cause for the loss of oil requiring replenishment by the addition of 100ml of oil on 16 February 1992 was the compressor seal T196.08. He thought that the entry of 24 February 1992 where the APU air was described as not fit for human consumption indicated that the oil was being dumped into the compressor during the operation T198.19 and that it was obvious that the seal was leaking oil PX 11B, p4, No. 34. He thought that oily vapour in the cabin with a burning smell on 2 March 1992 could be coming from the APU or the engines, but more probably the APU T203.22. He thought that the oil smells still very strong on 3 March 1992 were probably sourced to the APU T204.21. The history of topping-up of oil suggested a problem with oil consumption and it was more likely coming out of the compressor seal T227.24.
116. I find that leakage of oil through the compressor seal was the cause of smells in the cabin in the weeks leading up to 4 March 1992 and that the defendant should have been aware of that. There was a combination of matters here that leads to that view including that oil should not leak from the APU, that the defendant had information to that effect PX 39, that oil was leaking from the APU before 4 March 1992, that there were smells of oil in the cabin of VH-EWS before 4 March 1992 including a burnt smell on 3 March 1992 and that the defendant had got on top of the problem of the engine seals as a source of the smell and was focussing its attention on the APU. The defendant also had advice that if smell persisted despite checks, the compressor seal should be suspected as the source of the leak. The smell did persist despite checks and the defendant should, therefore, have suspected the compressor seal as the source of the leak.
117. The evidence does not disclose, other than by inference by its investigations, that the defendant did suspect the compressor seal as the source of the leak, but its case is that it carried out all possible checks and satisfied itself that there were no leaks from the APU and that the event that happened was unpredictable.
118. The defendant relies largely on the evidence of Mr Cain. He says that if failure of the seal was foreseeable, he would have expected oil loss to be evidenced by oil dripping out of the fuel oil drain mast at the front of the engine. In the absence of oil coming from the fuel drain mast, there would be no reason to suspect imminent cracking or fracturing of the seal T294. The fact is oil was escaping without this indicator being apparent. This may not mean much because the amount escaping was not large and Mr Cain was not asked about the absence of this indicator in light of the escape of the amount of oil recorded in PX 12. The point is, however, this cannot be much of an indicator for cases of relatively small, though important, amounts of oil escaping. Asked whether there might be any other indications, Mr Cain said there could be smells in the cabin, but those smells might have come from other sources. For reasons already given, in my view, the source of the smells in the weeks leading up to 4 March 1992 was the APU. Another indicator of oil loss, he stated, would be low oil level in the sight glass T297. Presumably, this would be recorded in PX 12 if the level was low. Even so, there was oil loss, but it may not have been at a level low enough to be recorded as low. The sight glass allows the viewer to see a tube with gradations on it. It is a bit like the dipstick in the engine of a car, but with more gradations T298.25. It is apparent that a level below full is not necessarily low so that even if oil was being lost, it would not necessarily be recorded.
119. Mr Cain was cross-examined about the compressor seal as a source of the leak. He agreed that, from very early, it was known that engine or oil compressor seal failure could cause oil contamination of the bleed air supply to the air conditioning pack which could, in turn, lead to smells in the cabin. He agreed that BA had identified the failure of compressor seals as a likely cause of oil smells in the cabin and that it had advised the defendant that a failure of the seal could result in ingestion of oil contaminated by air from the APU into the aircraft. He also agreed that if smoke was witnessed, leak of the compressor oil seal must be suspected T303.50-304.01. Oil smells alone could be due to the degradation of the compressor seal T304.11. In these circumstances BA issued a checklist of things to do. If, having completed the checks, the smell persisted, the compressor seal was to be suspected PX 28. Something must then be done either by way of further investigation or to change the engine or the APU or tear it down and rebuild it T304.23. He agreed that, if after investigation, there remained a suspicion that there was a leak in the compressor seal, that the correct procedure would be to change the engine or the APU, that is if the leak was confirmed as a leak T305.31. If it was suspected as a leak, you would do further testing. If further testing left you with a suspicion, you would not necessarily change the engine T305.34. He stated that if there was a suspicion that a compressor seal was leaking oil despite testing and the suspicion persisted, it would be appropriate to isolate the source and apply MEL as long as the suspicion persisted T305.44-49. I make some comments about this evidence in considering the reasonableness of the defendant’s response to the foreseeable risk of injury.
120. Mr Cain says the APU compressor seal had not been confirmed as the source, but nor had anything else and, if the APU compressor seal was to be excluded on his test, then every other source should be excluded too. I remain impressed by the literature from the authorities that should know PX 27, 28 and 14 that if, despite investigation, smell persists then it is appropriate, if not necessary, to suspect the compressor oil seal.
121. Mr Marosszéky’s view is consistent with this. He stated:
“Carbon seals are very delicate devices and rely on precise tolerances to maintain their sealing quality, depending on design and quality of construction (manufacture) they can easily be damaged or degraded in the ability seal. Once a leak is detected, the source of the leak would also have to be identified, however unless an engine tear down is performed the precise nature of the failure will not be known.” PX 11A, paragraph 8
“This is a critical point as engine oil leaks of any description should not be permitted to continue as they can lead to catastrophic engine failure, not to mention the possibility of dumping oil into the engine compressor and pumping it through the air conditioning system.” PX 11A, paragraph 9
122. In his comments on the entry of 28 February 1992 in PX 12, which included “V BAD SMELL”, Mr Cain stated that the cause of the smell was the oil being pyrolysed. He stated that the source of the smell could have been either the APU or the main engines. Two things may be noted about this. The first is that the defendant was aware, or at least if it had applied its mind to it at the time was capable of being aware, that the smell in the cabin was from the pyrolysed effects of oil. The second is that Mr Cain was acknowledging the possibility of the APU as being the source of the smells despite borescopic examination on 26 February 1992 finding no faults.
123. It was foreseeable that if the problem was not fixed, there would be a continuation of the oily smell in the cabin. It was foreseeable that if the problem was not fixed, pyrolysed oil in large quantities could be pumped through the air conditioning system into the cabin of the aircraft. That foreseeable event occurred.
124. Once the defendant knew of the problem of the oil smell in the cabin, it was appropriate for it to take remedial action to try to fix it. The question arises as to whether the action it took failed to meet a proper standard of care. That will depend in part on what was foreseeable to the defendant by way of risk to the plaintiff’s health.
Was injury foreseeable?
125. Both Dr Crank and Dr Markovic agreed that smoke from pyrolysed oil can be hazardous to the eyes, mucous membranes and lungs. Dr Crank expressed the view that it can be severely irritating and damaging to the human respiratory system. I would not understand Dr Markovic to disagree with that T279.16. In fact, Professor Crank took the view that any smoke could be severely irritating and damaging to the human respiratory system T123.01 -.06. I accept that evidence. The adverse effects will depend on such things as the content of the smoky products and the nature and extent of the exposure. Those variables tend to go to how quickly, if at all, a person may recover from exposure.
126. There was a history of complaints relating to health in relation to VH-EWS before 4 March 1992 PX 26. That history included several complaints relating to breathing difficulties in January and February 1992.
127. There was also an MSDS DX 10 for Mobil Jet Oil II. This document was available to the defendant. The document provided information in relation to risks of injury from inhalation. This was in relation to the inhalation of the oil or vapours of the oil, but it did not extend to the inhalation of the pyrolysed effects of oil. It did, however, include the following:
“product is suitable for burning in an enclosed, controlled burner for fuel value or disposal by supervised incineration”.
128. This would be suggestive of the effects of the burning of the oil being harmful to human health and, in any event, if the inhalation of vapours of the oil was potentially harmful to health, I would think so would be the smoke from its being pyrolysed. I do not understand the defendant to contest this aspect of the case.
129. It was foreseeable, in my view, that if the source of the ongoing smell in the cabin of the aircraft was not traced and fixed, it could result in harmful quantities of pyrolysed oil entering the cabin of the aircraft and that this could be harmful to the plaintiff’s health.
What was a reasonable response?
130. The next issue to consider is what a reasonable response to the foreseeable risk of injury should have been. Varying suggestions were made from stripping the engine to switching off the APU or operating the aircraft without it. Mr Cain suggested that stripping down was not necessary because there was no evidence of any major oil leakage from the APU.
131. There was no evidence as to what stripping or changing the APU would involve. There was no evidence as to how long it would take, how much it would cost or how long VH-EWS would be unable to fly. I assume it would have been a major project. It would, however, not have been impractical as removing the APU was, in fact, recommended on 1 March 1992.
132. In PX 12, was the entry 24 February 1992 “APU AIR NOT FIT FOR HUMAN CONSUMPTION”. Mr Cain thought that did not necessarily mean that the air was coming from the APU. On 1 March 1992 was a further entry “NIL LEAKS COOLING FAN APU, SUGGEST REMOVAL OF APU”. Mr Cain passed both entries off as not being reliable or accurate records. In particular, he passed the second entry off as somebody making a statement without proper knowledge of what was going on. It could have been an engineer or a pilot making a statement that he thinks something should be done. He later agreed it would not fall to a pilot to make such a suggestion and that it would have to be an engineer. When it was put it to him that engineers do not make those suggestions for no reason, his answer was that they make it on gut feeling. He later agreed it was not a recommendation that would be made lightly and there would have to be a confirmed defect. This entry is in a document of the utmost importance. It was a document that Mr Cain described as enabling one to see the hour-by-hour history of this particular aircraft. It is a document that anybody picking up should be able to rely on for its accuracy and that must have been known to the engineer who made the entry.
133. What one has then is nine days before 4 March 1992 a description that the APU air is not fit for human consumption and three days before 4 March 1992 a recommendation that the APU be removed. On top of that is the history in PX 12.
134. PX 12 reveals ongoing issues with oil smells in the cabin of VH-EWS and mechanical, electrical and other failures. I do not think it is necessary to track through the whole history in PX 12, but a number of things may be noted:
(a) the four recorded instances of oil loss;
(b) the APU should not have been losing oil;
(c) at least from 16 February 1992, from time to time, an MEL was applied. This allowed VH-EWS to fly without the APU operating. It was applied on and off up until 1 March 1992;
(d) on 1 March 1992, it was suggested that the MEL be removed;
(e) on 3 March 1992, the air conditioning packs were run on full hot for 15 minutes to clear them of their smell. That failed, suggesting the smell was coming from another source. I accept Mr Marosszéky’s opinion that the likely source was the APU or the engines and the APU was the more likely source as it was the only one operating T204.22. Also for reasons given earlier, I think the engines were an unlikely source by 4 March 1992;
(f) in relation to the entry of 3 March 1992 an MEL was applied. It was applied because of the APU air T321.35;
(g) the MEL was removed on the basis of a borescopic examination failing to reveal any oil leak T321.37. It is an appropriate and proper form of examination for such purpose. Mr Cain described it as “reasonably accurate” T287.10. If it detects oil residue, it will have established that there is an oil leak. It may even detect the source of the oil leak. It is possible, however, for there to be an oil leak leaving no residue so that a borescopic examination will reveal neither oil residue nor leak. It is common ground that the borescope is not capable of inspecting the whole of the compressor seal. There was debate as to whether it was capable of inspecting any part of the compressor seal. The compressor seal is an air/oil seal and it is common ground that the borescope was not capable of visualising the oil part of the seal T306.24 and 331.06. It was that part of the seal where the crack developed in this case enabling the oil to escape. Whilst borescopic examination was appropriate its result, in the absence of a positive finding of oil residue or source of oil leak, could not be taken as conclusive. Borescopic examination was not the only diagnostic process undertaken by the defendant. Black light or ultraviolet light T287.15 were said by Mr Cain to have been used to detect traces of oil, although there is no specific reference to this in the documentary material. These lights look for traces of oil. There are limitations with the use of black light or ultraviolet light. With the APU running, if oil was leaking it would be exposed to temperatures causing pyrolysis and leaving no trace of oil detectable by black light or ultraviolet light. It is not entirely clear from the evidence to what extent oil would leak after the APU was switched off. It might be inferred from what Mr Cain said that oil may leak when the engine is running or when it is rotating for a time after it is switched off T290.33. There is considerably less potential for oil leakage when the APU continues to rotate after it is switched off T308.34. Yet at another point, Mr Cain said that when the APU is switched off “no oil is being bed (sic – “bled”) into the furnace to be burnt” T307.25. If this is so, the only oil escaping would have been pyrolysed leaving no trace for detection by black light or ultraviolet light. Considering this evidence, I am not satisfied that the black light or ultraviolet light provides a reliable test for detecting oil leakage of the kind that occurred in this case;
(h) even on the defendant’s case, as late as 4 March 1992, whilst Mr Cain was of the view that the engines were the source of the smell, he was speaking in probabilities. As thorough as he says the inspection of the APU was, the APU was not excluded as a possible source of smell.
135. By 2 March 1992, the defendant, in my view, should have implemented the action recommended in the SIL PX 28. The recommendation was to investigate the smell and if, after investigation, smell remained, then the compressor seal should be suspected as the source of the smell. With the compressor seal being suspected in these circumstances, the APU should be changed or torn down and rebuilt T304.23. In my view, suspicion alone after testing warranted and required that action. It was not good enough to wait until a source of the leak was confirmed as Mr Cain sought to do. An employer’s duty to his employee to act in a reasonable way does not attach only when the employer knows, by way of confirmation, what the cause of a problem is, but it attaches when there are reasonable grounds to know or suspect what the cause of the problem is. In this case, in my view, there were ample grounds to suspect the compressor seal.
136. One of the problems with Mr Cain’s approach was that a crack in the compressor seal of the nature that occurred in this case could never be detected by borescopic investigation because the borescope could not probe to that part of the seal where the crack occurred. By 3 March 1992, in my view, the situation had arisen whereby the defendant should have removed and stripped down or even changed the APU as suggested by the engineer on 1 March 1992. If that was not practical at that time, arrangements should have been put in place for that to be done at a convenient time. In the meantime, the defendant should have taken reasonable steps to protect the health of the plaintiff. A reasonable step, indeed a simple one, would have been to have applied the MEL so that the aircraft could fly without the APU operating. The MEL was in place on 3 March 1992 and, on the basis of a borescopic examination which could not be conclusive, removed before the plaintiff flew in VH-EWS on 4 March 1992. It should have been in place when the plaintiff flew in the aircraft on 4 March 1992.
The plaintiff’s condition and its cause
137. The plaintiff claims she has RADS. This is supported by Professors Glanville and Bryant and Dr Burdon. It is opposed by Professor Breslin. I put to one side for the moment the evidence of Dr Burdon as he was not examined and cross-examined about the diagnosis to the extent that the others were.
138. Professors Glanville and Bryant agree that there is no definitive diagnostic indicator for a diagnosis of RADS. It is a diagnosis made as a result of considering a number of indicators, whether they are present in a particular case and the importance to be placed on particular indicators.
139. The indicators are:
(1) absence of preceding respiratory complaints;
(2) onset of symptoms after a specific exposure;
(3) the exposure being to gas, smoke, fumes or vapour;
(4) the onset of symptoms within 24 hours following exposure and persisting for at least three months;
(5) symptoms simulating asthma, being cough, wheezing and shortness of breath with dyspnoea predominating;
(6) lung function test showing airway obstruction;
(7) methacholine challenge test being positive;
(8) absence of cigarette smoking for a number of years;
(9) exclusion of other pulmonary diseases or diagnoses which might explain the symptom complex or cause of the cough.
140. In an ideal world, all these indicators would be present to make the diagnosis of RADS. However, it is not necessary that all be present. It is sufficient that some of them are. Whether enough are present will depend on matters such as whether a sufficient number is present and the importance to be attached to those indicators which are present and those which are not.
141. Professor Glanville put a lot of store on the last of the indicators, being what he called the “exclusion criteria” T154.25. Other indicators he thought were important were acute symptoms following a specific exposure and the onset of symptoms within 24 hours after the event.
142. Professor Bryant had a different emphasis on what he thought were the important indicators. He thought the important criteria were verification that exposure to an irritant occurred, objective evidence of an obstructive lung defect, development of symptoms following the exposure or in the event of a pre-existing history of symptoms a marked and material change of these symptoms following exposure and symptoms evolving within 12-24 hours after the exposure.
143. Professor Breslin says that the plaintiff does not have reactive airways. By definition, therefore, she does not have RADS. Some of the criteria for RADS were not merely indicators, but were fundamental. Professor Breslin thought that the following matters were fundamental:
(a) there should be symptoms simulating asthma T388.30. This is because RADS is a form of asthma T388.42. He acknowledged that asthma was not excluded by the lung function tests at St Vincent’s Hospital on 15 February 2001 T389.21 and this was consistent with reactive airways T389.23, but that was at that time;
(b) the plaintiff should be reactive to the methacoline test, the saline provocation test and the exercise test. All these tests are normal, therefore the plaintiff is not reactive to them, therefore she does not have asthma T389.38, 391, 395.
144. Professor Breslin thought that if the cough was due to RADS, she would have reactive airways and she does not, but she is still coughing T390.24, 395. The absence of reactive airways is not explained by the treatment she has undergone because it has not got rid of her cough T390.28. Therefore, not only does she not have reactive airways, but her cough is not due to reactive airways.
145. Professor Breslin thought that, accepting the history, it is difficult to deny the causal link between the event and the cough even though the diagnosis is not known T395.40. On the history, an occult reflux could have been activated T396.38.
146. Professors Glanville and Bryant plainly must have thought the challenge tests were not critical in diagnosing RADS. If they thought otherwise, they could not have diagnosed RADS as all tests were negative. Unfortunately, Professor Breslin’s reasoning process, which I find to be compelling, was not put to Professors Glanville and Bryant.
147. I accept Professor Breslin’s view that the plaintiff does not have RADS. His explanation is plausible, logical and makes sense. It makes sense that one cannot have RADS without reactive airways. His reasons as to why the plaintiff does not have reactive airways, I think, are compelling.
148. The plaintiff has been examined by Dr Gianoutsos for the defendant in February 2008. He was not called and his reports were not tendered. It was submitted that I should draw an inference that his evidence would not assist the defendant’s case. I do not think that is the proper inference to draw. As Professor Breslin had given evidence, I think that the proper inference to draw is that his evidence would not have advanced the defendant’s case any further than it had been advanced by Professor Breslin. I am prepared to draw that inference, but in light of my analysis of the medical evidence, it does not make any difference to the views I have expressed.
149. The result is that we are in a field where medicine does not provide any definitive or even probable answer. The diagnosis is unclear or unknown. In these circumstances I consider the history assumes considerable importance.
150. I find:
(a) the plaintiff had a cough that pre-existed 4 March 1992 as earlier described;
(b) the plaintiff had no cough from 1986 until 4 March 1992. I am aided in that by the plaintiff’s history to Dr Yan and her lack of visits to doctors for cough in that period;
(c) the plaintiff has had a cough ever since 4 March 1992. I accept the husband’s evidence about this;
(d) the plaintiff was exposed to pyrolysed effects of Mobil Jet Oil II on 4 March 1992;
(e) pyrolysed effects of Mobil Jet Oil II are harmful to the lungs.
151. In coming to the view I do about the plaintiff’s condition and its cause, I am particularly impressed by a six year history before 4 March 1992 of the plaintiff’s being cough-free, by the nature of the event of 4 March 1992, by the potential toxic effects of the pyrolysed oil, by the plaintiff’s immediate reaction and by her continuing symptoms.
152. Professor Breslin initially thought that the plaintiff had an occult gastroesophageal reflux. Though the plaintiff has not been examined for that, Professor Breslin has gone off it as a likely explanation for her cough. It remains a possibility on the basis that the contaminants irritated the airways and set up a cough which set up a gastroesophageal reflux which caused the cough to continue T397.21. Professors Glanville and Bryant excluded gastroesophageal reflux, but they were not excluding the type of occult reflux described by Professor Breslin. They were excluding another entity altogether.
153. The plaintiff has eosinophils in her airways that could suggest an allergic basis for her cough. That is another possible explanation for the cough. It is on the basis of an aggravation or reactivation of a pre-existing condition.
154. Professor Breslin thought that the exposure did not provide the linking mechanism, but he did think it was difficult to dissociate the event from the cough T396-7. Professor Breslin’s difficulty with the linking mechanism seems to lie at least in part on the view that oil does not produce allergy. This was simply a case of the plaintiff being exposed to oil which he did not think contained harmful products. “If she had been exposed to ammonia, or some really irritating agent, then it would be a bit easier …” T397.26. The reference to ammonia is understandable as the irritating effects of that are something nearly everybody would know and understand. The pyrolysed effects of oil, in my view, were an irritating agent in the same sense.
155. I think one or other of two possibilities has occurred. Either the contaminants irritated the airways which set up a cough, which set up the reflux, which caused the cough to continue or the contaminants have irritated the airways causing an aggravation or reawakening of an underlying allergic condition resulting in the continuing cough. I do not think it matters which of these events is the correct one. Either way, the plaintiff’s airways have been irritated with the result that her cough has been produced and it has remained now for some 17 years and is likely to continue for life. On either analysis, there is a pathological condition of the lungs caused by the exposure to the smoke.
Damages
156. The plaintiff’s damages fall to be assessed under the WCA. This is because she does not have a dust disease within the meaning of the Workers Compensation (Dust Diseases) Act 1942. She, therefore, does not come within exclusion (c) of the definition of injury in s4 of the WCA. Therefore, she has an injury within the meaning of the WCA and damages are to be assessed under that Act. In earlier proceedings Joanne Turner v Ansett Australia Limited [2007] NSWDDT 26, I granted leave to the plaintiff to amend the statement of claim. That had the effect of Eastwest becoming a defendant in these proceedings. In those proceedings, a question was argued as to whether the amendment operated from the commencement of the proceedings on 23 November 2001 or from some other date. I offered the view that the amendment operated from the commencement of the proceedings, but did not make any order to that effect. I thought it was not appropriate to make such an order as had been sought by the plaintiff. My view was that this result would be brought about by operation of law. My reasons for the opinion that the amendment operated from the commencement of the proceedings are set out in my judgment in those earlier proceedings and I do not repeat them here. I maintain the view that the amendment has effect from the commencement of the proceedings. The result of this is that the plaintiff’s damages are to be assessed in accordance with the WCA as it applied without regard to the sweeping changes that were introduced late in November 2001.
Non-economic loss
157. I have recounted earlier in these reasons the symptoms the plaintiff has a result of her exposure to the smoke in the cabin of the aircraft on 4 March 1992. I need not recount that detail here. I summarise it by saying that she immediately had acute symptoms. She has had an underlying cough of the nature I have described earlier and has had that from about 4 March 1992. She has had a more aggressive cough in the form of more severe coughing fits that can last between two to seven days T99.30. There is no doubt that the symptoms have caused the plaintiff to be upset and annoyed, even angry. They are no doubt irritating to her and embarrassing. They are embarrassing to the extent that she perceives that people have a reaction to her cough, although that perception lies probably more in her understanding than in the reality of people’s reactions. It is, nevertheless, real to her. I accept also that she has occasional incontinence. Some things in life are now denied to her and have been for some time and that includes such things as attending cinemas and concerts. The plaintiff is not the vibrant person she used to be.
158. Though her cough was present throughout the course of these proceedings, I did not find it intrusive or disturbing or distracting. There was never a need for a question or an answer or submission to be repeated because the cough had made it inaudible.
159. The plaintiff has had her symptoms now for about 17 years and will continue to have them for another 38 years approximately on the Life Expectancy Tables.
160. Assessment of non-economic loss is governed by s151G of the WCA as it was in March 1992. It provided:
“(1) No damages are to be awarded for non-economic loss unless the injured worker’s ability to lead a normal life is significantly impaired by the injury suffered by the worker.
(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
(3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case.
(4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded.
(5) If the amount of non-economic loss is assessed to be between $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows:
Damages = [Amount so assessed - $36,000] x 4 …
(7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81 (1).
(8) If an amount mentioned in this section:
(a) is adjusted by the operation of Division 6 of Part 3; or
(b) is adjusted by an amendment of this section,
the damages awarded are to be assessed by reference to the amount in force at the date of the injury.”
The amounts specified were the amounts in force at the date of the plaintiff’s injury.
161. The requirement that the plaintiff’s ability to lead a normal life be significantly impaired before being entitled to non-economic loss was removed retrospectively by the Workers Compensation Legislation (Miscellaneous Amendments) Act 1994. In any event, I am satisfied that the plaintiff’s ability to lead a normal life has been significantly impaired.
162. I am required to make an assessment of the plaintiff’s entitlement to damages for non-economic loss by reference to a most extreme case. A most extreme case is not necessarily the worst case that can be imagined and the concept embraces a number of different situations. In my view, a fair assessment of the plaintiff’s injuries and disabilities compared to a most extreme case is 25%. The figure available for a most extreme case as at 4 March 1992 was $204,000. Under the section, the plaintiff is entitled to 25% of that figure without any deductible component to be made from it. Accordingly, she is entitled to $51,000 for non-economic loss.
Economic loss
163. This is governed by s151H of the WCA which at the relevant time provided as follows:
“(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.
…
(2A) A serious injury is, if received on or after the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991:
…
(b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66).
…
(4) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amount of $48,000 were an adjustable amount and were referred to in section 81 (1).
…
(6) If an amount mentioned in this section:
(a) is adjusted by the operation of Division 6 of Part 3; or
(b) is adjusted by an amendment of this section,
the damages awarded are to be assessed by reference to the amount in force at the date of the injury.”
The amount of $48,000 specified was the amount in force at the date of the plaintiff’s injury.
164. The assessment I have made for non-economic loss passes the threshold set by s151H(2A(b)) for economic loss.
165. The plaintiff’s Further Amended Statement of Claim of 17 March 2009 merely claims loss of earning capacity on the open labour market. The plaintiff’s particulars are barely more enlightening. It is apparent, however, that the plaintiff claims economic loss from 12 September 2002. There is no claim for economic loss from 4 March 1992 and 12 September 2002. I do not accept that the plaintiff lost any time from work in that period because of her cough. Not only is there no economic loss in that period, but this period of work also demonstrates a capacity in the plaintiff to undertake her work. She claims that she could not do the full range of her duties during that period because of her cough. That evidence is not corroborated and I do not accept it. It would also appear to be inconsistent with history given to Professor Bryant T165.12. When the plaintiff ceased work with Ansett, it was not the cough that caused the plaintiff to lose income, but the collapse of Ansett.
166. I have no reason to believe that if Ansett had not collapsed the plaintiff would not have been able to continue to do her work. Nevertheless, considering the symptoms that the plaintiff has, I consider that she would be at a disadvantage on the open labour market. In my view, she is therefore entitled to damages representing a loss of earning capacity. This is best covered, I think, by providing a buffer or cushion.
167. I reject the earnings relative to police officers’ work as a useful guide. I reject also the plaintiff’s claim for damages for loss of a chance to obtain employment as a police officer. The plaintiff was proceeding with her application to join the police service and intended to do so and was prepared to do general duties work. There was no indication on her part that she would be unable to do it. The only medical evidence in the case comes from Professor Glanville who supported her in her intention to pursue that work. It is fairly clear from Professor Glanville’s report PX6B that the document addressed “TO WHOM IT MAY CONCERN” was a report in relation to her intention to undertake the police work. The plaintiff says that the only reason she did not pursue it was because of her cough and that Dr Papakostas told her that she would be unfit for the work. I do not accept what she says as evidence of Dr Papakostas’s view. No evidence was called from him to support such a view.
168. The plaintiff has demonstrated that for ten years after the incident in March 1992, she has been capable of undertaking flight attendant work. She has also done work as an orthodontist’s receptionist, although that was only for one week. She left of her own will. She was, in my view, capable of doing the work.
169. In my view, the plaintiff is capable of undertaking almost all tasks which would be available to her by reason of her education, training and experience. There is no doubt some limitation to what she can do by reason of her symptoms and her cough might be unappealing to some potential employers. She would lose time from work during the more severe coughing episodes. I think a fair assessment for loss of capacity for the past is $10,000, inclusive of superannuation.
170. For the future, I think it is appropriate to assess of the plaintiff’s loss of earning capacity by allowing a buffer. I bear in mind the matters I have already mentioned and also bear in mind that the plaintiff has about 171/2 years to go until 65 years of age. I allow a figure of $25,000 for the future, inclusive of superannuation.
Out-of-pocket expenses
171. For the past, out-of-pocket expenses are agreed at $3,353.96.
172. For the future, the plaintiff claims as follows:
general practitioner visits 3-4 per year @ $60 per visit;
spirometry on half the visits to GP @ $20 per visit;
specialist every 6-12 months @ $75-150 per visit, together with spirometry $20;
inhalers @ $60 per month;
cough mixture @ 1 bottle per week at $20 per bottle;
oral steroids and antibiotics once or twice a year @ $50 for each course; and
x-rays every 1 to 2 years at $50 per x-ray.
173. This claim is based on the evidence of Professor Bryant in PX 8C. In his oral evidence T174.20, it is apparent that Professor Bryant made his assessments on the basis of the plaintiff not being able to work and frequently requiring assistance to help her through the day. I do not accept that she is unable to work or frequently requires assistance to help her through the day and, accordingly, much of the foundation for the views expressed by Professor Bryant falls away.
174. Professor Glanville had difficulty assessing the likely cost of the plaintiff’s ongoing expenses, but estimated they would be in the order of $2,000 per annum PX6D. This is close to Professor Bryant’s assessment.
175. The defendant’s case that the plaintiff’s history of treatment so far is an indication of the treatment she is likely to require in the future has merit. This would mean that she would not require visits to the general practitioner or the specialist or the spirometry testing or the x-rays to the extent suggested by Professor Bryant, nor do I think her consumption of medications is likely to be as extensive as Professor Bryant has suggested. I do not consider the evidence supports the consumption of medication to the extent claimed by the plaintiff. Medical evidence supporting the consumption of medication to the extent claimed by the plaintiff was not forthcoming. The plaintiff could not recall how often she had seen Dr Papakostas over 2002 to 2004, but it may have been only a few times. There was no evidence tendered from Dr Papakostas, nor any evidence from other general practitioners from 2002 to date. It is difficult to get any definitive guide from the amount of the plaintiff’s out-of-pocket expenses to date because there is no indication of what those expenses were for or over what period they were incurred, but the amount involved would not suggest that the plaintiff will require ongoing treatment and medication to the extent claimed. If the plaintiff were to be allowed damages for future out-of-pocket expenses to the extent suggested by Professor Bryant, she would be allowed about $40,000. I think $15,000 is more realistic and reasonable.
Griffiths v Kerkemeyer
176. The plaintiff’s damages in respect of this head of claim are governed by s151K of the WCA. At the relevant time, it provided:
“(1) An award of damages is not to include compensation for the value of services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to the injured worker by a member of the same household or family as the injured worker, except in accordance with this section.
(2) No compensation is to be awarded unless the services are provided, or are to be provided, for not less than 6 months and may be awarded only for services provided or to be provided after the 6-month period.
(3) No compensation is to be awarded if the services would have been provided to the injured worker even if the worker had not been injured.
(4) No compensation is to be awarded unless the services provided or to be provided are not less than 6 hours per week and compensation may be awarded only for services provided or to be provided after the first 6 hours.”
177. The thresholds provided by sub-sections 2 and 4 were abolished retrospectively by the Workers Compensation Legislation (Miscellaneous Amendments) Act 1994. That Act also repealed sub-section (1) and substituted:
“(1) Compensation, included in an award of damages, for the value of services of a domestic nature or services relating to nursing and attendance:
(a) which have been or are to be provided by another person to the injured worker; and
(b) for which the injured worker has not paid or is not liable to pay,
must not exceed the amount determined in accordance with this section.”
178. The plaintiff claims as follows:
(a) she says that she is unable to tolerate chemicals and fumes and I think that is reasonable. As a result, she says her husband needs to spend about one hour per week undertaking tasks that require the use of chemicals where she would be exposed to fumes. These tasks include things such as cleaning the shower or the oven. One hour per week is claimed. The husband’s evidence is consistent with this T99.41. The husband did say that the plaintiff did this work at times, but it did not seem to be very often. In any event, in my view, with her condition, she should not be unnecessarily exposed to chemical cleaning agents. I think this claim is reasonable;
(b) in the periods when she has the more aggressive coughing, she claims six hours per day for occasions when she is bedridden as a result of the cough PX 2, paragraph 75. I reject that claim as I do not consider the evidence supports occasions of the plaintiff being bedridden, apart from a couple of occasions her husband gave evidence about and they being two minor incidents, and possibly even unrelated, may be ignored;
(c) also in respect of the periods of worsened coughing episodes, the plaintiff claims four hours per week over six weeks for care and assistance provided by her husband PX 2, paragraph 76. Her evidence suggests that these episodes occur about four times a year. The husband’s evidence is that these episodes would last for two to seven days T96.29 and 99.30 and that they occur about six times a year. The jobs that he described doing on these occasions may be put in three categories T96.42-44 and 99.47:
(i) tasks that are not compensable in any event. These include tending to the pet T99.48;
(ii) tasks that are not compensable in this case, because they are tasks the husband would probably have undertaken in any event such as seeing that the children practised their musical instruments T101.31;
(iii) tasks that might otherwise be compensable.
179. There are several problems with entitlement to damages in respect of the third category. The first is that damages for this head of claim arise because of a need in the plaintiff resulting from her injury Van Gervan v Fenton (1992) 175 CLR 327. In my view, the evidence does not support such a need. It does not support that there are specific tasks that the plaintiff is unable to do. The husband said she has never been in a condition where she has been unable to care for the children T102.11. That barely leaves any need that could be compensable. The next point is that the evidence does not support an inability to do particular tasks that need to be done during the period of inability. It is in the nature of household tasks that many can be deferred for a day or two. The evidence does not support that the plaintiff had an inability to do any tasks that could not be deferred until she became able to do them. The next problem with this head of claim is that the evidence did not disclose what time was devoted to each of the three categories above, so that there was no evidence as to the time occupied in undertaking tasks that might be compensable. I reject this aspect of the plaintiff’s claim.
180. I think it is reasonable to allow one hour per week in respect of tasks that need to be undertaken by reason of the plaintiff’s reaction to chemicals and fumes.
181. I allow the plaintiff one hour per week from March 1992 to the present. The plaintiff is entitled to damages at the statutory rate under s151K. That has varied from 1992 to the present. The plaintiff has put that $17.69 per hour is an average over the period and I do not have anything to contradict that. I allow the plaintiff damages accordingly. The amount would be slightly in excess of $14,000. To allow for occasions when the plaintiff did the work herself, I reduce the figure to $14,000.
182. As to the future, I allow one hour per week at $22.62 for 38 years for which the 5% multiplier is 902, being $20,403.24. The plaintiff’s schedule claims damages in accordance with a 3% multiplier, but s151J of the WCA requires a 5% multiplier.
183. Summary of figures
Non-economic loss (para 162) Past loss of earnings (para 169) Future loss of earnings (para 170) Past Out-of-Pocket expenses (para 171) Future Out of Pocket expenses (para 175) Past Griffiths v Kerkemeyer (para 181) Future Griffiths v Kerkemeyer (para 182)
Interest
184. The above figures make no allowance for interest. The parties agreed that the question of interest should be reserved pending my decision on the other issues in the case. I propose to make directions dealing with the matter of interest.
185. Orders, Directions, Notations
(1) I enter a verdict in favour of the plaintiff.
(2) Should the plaintiff wish to make a claim for interest, I direct that a written submission be filed and served in support of such claim by 12 May 2009.
(3) In the event that the plaintiff files and serves a written submission in accordance with (2) above, the defendant is to file and serve any written submission in reply by 19 May 2009.
(4) If either party wishes to call oral evidence in respect of the claim for interest, that should be indicated in the written submission.
(5) The matter is to be listed before me on 20 May 2009.
(6) On 20 May 2009, if there is to be no application for interest, judgment will be entered in favour of the plaintiff in the sum of $138,757.20.
(7) On 20 May 2009, if there is to be an application for interest, the parties should be in a position to call oral evidence and to argue the matter.
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